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The New Jersey Appellate Division Addresses the Discoverability of a Worker’s Social Media Posts as Part of Her Discrimination Case

Social media represents a nearly ubiquitous presence in the lives of many people today. Older generations often counsel younger ones to be wary of “putting too much out there” on social media or text messages. While the wisdom of that advice can be reasonably debated, there undisputedly are times when your social media content can play a role in your discrimination or harassment case, and it’s important to recognize that reality at the outset. As with any aspect of your discrimination case, a skilled New Jersey employment discrimination lawyer can advise of your rights, as well as what your obligations may be under the rules of discovery.

A disability discrimination case from Union County shows an example of a situation where the worker’s online information was discoverable.

N.D., the worker, was a staff attorney with a nonprofit that performed legal advocacy for people with disabilities. The staff attorney was herself a person with disabilities, as she had received diagnoses of lupus and cancer. In January 2020, the organization fired the staff attorney, so she sued, alleging that the termination was an act of impermissible disability discrimination in violation of the New Jersey Law Against Discrimination.

The staff attorney, in her complaint, alleged that her employer’s discriminatory conduct had harmed her in numerous ways, including “economic loss, physical and emotional distress, anxiety, pain and suffering, humiliation, [and] career, family and social disruption.”

Many of these are typical injuries to suffer – and therefore to claim in an NJLAD complaint – if one has been wrongfully terminated for discriminatory reasons. The staff attorney’s inclusion of emotional harm, however, played a key role in how the employer responded.

The employer asked for a court order compelling the staff attorney to disclose “all her social media content ‘concerning any emotion, sentiment, or feeling of [p]laintiff, as well as events that could reasonably be expected to evoke an emotion, sentiment, or feeling.’” The trial judge narrowed the scope somewhat (such as clarifying that the staff attorney need not disclose posts wishing others a “Happy Birthday” or disclose posts where she discussed her emotions and feelings in relation to current political events,) but ultimately green-lit the employer’s discovery request.

The appeals court acknowledged that the staff attorney had a privacy interest in her private social media posts but ultimately concluded that this interest was outweighed by other competing interests.

A worker’s privacy interest in her private social media content is not absolute. Both New Jersey law (the Social Media Privacy Law) and federal law (the Stored Communications Act) discuss individuals’ privacy rights regarding social media content, but neither says that social media content is totally immune from discovery as part of a civil lawsuit.

In some circumstances (a discrimination case alleging emotional harm being one of them,) the court must balance that privacy interest against the employer’s interest in pursuing potentially relevant evidence upon which to build its defense.

New Jersey’s Rules Typically Come Down in Favor of Disclosure

The appeals court, in upholding the trial judge’s discovery order, pointed out that New Jersey’s discovery rules are “liberal” in the sense that they generally favor resolving disputes in favor of, not against, disclosure. The appeals court declared that the information the employer sought was relevant to the issues in the staff attorney’s lawsuit, expressing its agreement with a federal District Court in Indiana that had written in 2010 that it was “reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress.”

In siding with the trial judge’s order, the appeals court explicitly rejected an argument that the law should view a worker’s private social media content as analogous to personal financial records and grant them heightened protection against disclosure in civil discovery.

This outcome is useful to workers in providing an advanced warning about what they may face as part of their discrimination case. As a worker, you should not be frightened or intimidated by this outcome. Just because your Facebook or other social media posts do not depict someone thrust into the depths of despair after your wrongful termination, that does not mean that you cannot readily prove through other means that you suffered clear emotional harm and deserve compensation.

Whatever the bases for compensation in your discrimination case – be they lost wages, physical injury, emotional damage, or all of the above – the right legal team can help you make the most of your case. The knowledgeable New Jersey disability discrimination attorneys at Phillips & Associates are dedicated to representing New Jersey workers who have been the targets of illegal discrimination, and to helping them seek justice for the harm they’ve endured. To find out more, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

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